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New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Collective Bargaining; Faculty & Staff

Amicus Brief in University of Southern California v. Nat’l Labor Relations Bd. (Oct. 31, 2017)

Amicus brief by the American Council on Education (ACE) and seven other education associations in support of Petitioner in the case University of Southern California v. Nat’l Labor Relations Bd. At issue is whether the framework used by the National Labor Relations Board (NLRB) in Pacific Lutheran to decide the managerial status of university faculty, which in turn determines their eligibility to form a collective bargaining unit under the National Labor Relations Act, is contrary to the U.S. Supreme Court decision NLRB v. Yeshiva University. Amici argue that the NLRB’s framework adds onerous elements to its existing framework and fundamentally, misunderstands the importance of shared governance and the role of faculty members in American higher education institutional decision-making. 

11/7/2017
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Collective Bargaining; Faculty & Staff

Terra Faculty Association v. Terra Community College (Ohio App. September 29, 2017)

Decision and Judgment affirming the trial court’s award of summary judgment to the Appellee’s and denying Appellant’s Cross-Motion for Summary Judgment. Appellant, Terra Faculty Association, alleged that Terra Community College breached the parties’ Collective Bargaining Agreement (CBA) by declining to arbitrate a grievance involving the non-reappointment of non-tenured faculty. The terms of the CBA required the parties to submit to arbitration to resolve grievances, subject to certain exclusions. The court found that the plain language of the CBA excluded from mandatory arbitration  matters concerning the non-reappointment of non-tenured faculty.  Finding Appellant’s remaining arguments unpersuasive, the court awarded judgment to Terra Community College. 

10/2/2017
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Collective Bargaining; Faculty & Staff

In the Matter of a Petition for Determination of an Appropriate Unit and Certification as Exclusive Representative Service Employees of International Union v. University of Minnesota (Minn. App. September 5, 2017)

Opinion reversing the order of the Bureau of Mediation Services (BMS) as it pertains to bargaining unit classifications. Petitioner, the University of Minnesota (UM), alleged that BMS exceeded its authority under the Minnesota Public Employment Labor Relations Act (PERLA) when it re-assigned lecturers and teaching specialists from the administrative staff unit, Unit 11, to an instructional unit, Unit 8, at the request of the Respondent, Service Employees International Union (SEIU). Looking to the plain language of PERLA, the court found that BMS did not have authority to assign lecturers and teaching specialists to Unit 8, since they were previously assigned by statute to Unit 11, and since there was not sufficient evidence to support the BMS finding that a “significant” modification of occupational duties warranted re-assignment. Neither the changes in occupational duties reflected by 1980 and 2005 policy statements nor SEIU’s argument about the growth of academic professionals in university operations, amounted to “substantial” changes, as required by PERLA.

9/8/2017
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Collective Bargaining; Faculty & Staff

NLRB Decision in University of Southern California and SEIU Local 721 (June 7, 2017)

Decision and Order by the Regional National Labor Relations Board (NLRB) in Region 31 granting summary judgment to Service Employees International Union (SEIU) Local 21. The non-tenure-track faculty at University of Southern California’s (USC) School of Art and Design formed a union, and the election was certified in 2016. Asserting that the adjuncts were not entitled to collective bargaining because they participate in management and shared governance, USC refused to bargain with the unit. SEIU filed a complaint asserting that USC was violating the National Labor Relations Act (NLRA). Concluding that USC could have but failed to raise the certification issue in the prior representation proceeding, did not produce any newly-discovered and previously-unavailable evidence, and failed to demonstrate special circumstances that required the Board to revisit the decision, the NLRB granted the SEIU’s Motion for Summary Judgment. 

6/9/2017
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Collective Bargaining; Faculty & Staff

National Labor Relations Board Decision in University of Chicago and International Brotherhood of Teamsters (May 23, 2017)

Decision and Direction of Election by the National Labor Relations Board (NLRB) Region 13. Petitioner, the International Brotherhood of Teamsters Local 743, sought to represent a unit of student employees at the University of Chicago libraries who are paid on an hourly basis. The Regional Board rejected the University’s assertion that Trustees of Columbia University in the City of New York, 364 NLRB No. 90 (2016), was wrongly decided. Then, upon affirming the hearing officer’s decision not to allow the University to present evidence to show that the petitioned-for employees were not “employees” under Section 2(3) of the National Labor Relations Act, the Board concluded that the petitioned-for unit was appropriate for the purposes of collective bargaining. 

5/25/2017
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Collective Bargaining; Faculty & Staff

National Labor Relations Board Decision in Vanderbilt University and Service Employees International Union Local 205 (May 3, 2017)

Decision and Order by Region 10 of the National Labor Relations Board (the regional board) finding that the full-time non-tenure-track faculty at Vanderbilt University are employees within the meaning of the National Labor Relations Act (NLRA). Citing the standards for determining whether employees exercise managerial control, articulated in NLRB v. Yeshiva University, 444 U.S. 672 (1980) and Pacific Lutheran University, 361 NLRB No. 157 (2014),  the regional board determined that the employees’ authority to exercise managerial control was limited to academic programs and policy, and that their inability to exercise control over, or make effective recommendations concerning, enrollment management, finances, or personnel policies and decisions rendered them non-managerial under the NLRA. Though the regional board found that the petitioned-for unit was not readily identifiable as a group and therefore inappropriate as a bargaining unit, it separated the petitioned-for unit into smaller units based on the faculty’s primary school appointments and directed elections to take place.

5/5/2017
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Collective Bargaining

Collective Bargaining: Regional NLRB Decision in George Washington University and SEIU Local 500 (Apr. 21, 2017)

Decision and Direction of Election by Region 5 of the National Labor Relations Board. Petitioner, Service Employees International Union (SEIU) Local 500, sought to represent a bargaining unit comprised of all full-time and part-time resident advisors at George Washington University (GWU). Over GWU’s objections, the Board concluded that resident advisors are “employees” within the meaning of the National Labor Relations Act (NLRA) based on its recent decision in Columbia University, 364 NLRB 90 (Aug. 23, 2016). In Columbia University, the Board held that students who perform services for private institutions in connection with their studies are considered employees covered by the NLRA. Because resident advisors receive compensation—as opposed to academic credit—in return for services performed for the employer, and are subject to the employer’s control in the performance of their duties, the Board concluded that GWU’s resident advisors constituted a unit appropriate for the purpose of collective bargaining.
4/24/2017
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Collective Bargaining; Faculty & Staff

Klotsche v. Yale University and International Union, Security, Police and Fire Professionals of America, Local No. 502 (D. Conn. Mar. 7, 2017)

Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a security officer at Yale University, was suspended for one day without pay after he was repeatedly found in the basement of a campus building reading textbooks and taking notes while he was supposed to be on duty. He filed suit against Yale and the Union claiming that the disciplinary measures imposed upon him violated the provisions of the collective bargaining agreement (“CBA”)  and the Union's duty of fair representation. The Court found that the decision to suspend Plaintiff after repeated verbal warnings was consistent with the CBA's progressive discipline structure. It further concluded that the Union’s decision not to pursue the matter to arbitration was permissible because the Union filed Plaintiff’s grievance and represented him at two of the steps in the grievance procedure, during which the University found Plaintiff’s arguments to be without merit. Further consideration of the matter, the Court predicted, would likely be futile.

3/8/2017
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